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Schwartz, Melanie; Cuneen, Chris --- "Working Cheaper, Working Harder: Inequity in Funding for Aboriginal and Torres Strait Islander Legal Services" [2009] IndigLawB 4; (2009) 7(10) Indigenous Law Bulletin 19
Working Cheaper, Working Harder: Inequity in Funding for Aboriginal and
Torres Strait Islander Legal Services
by Melanie Schwartz and Chris
Cunneen
Good legal representation for Indigenous people goes to the
heart of questions of access to justice, equity and the rule of law; proper
representation represents the ability of Indigenous people to use the legal
system to a level enjoyed by other Australians. Aboriginal
and Torres Strait
Islander Legal Services (‘ATSILS’) are the preferred provider of
legal services for Indigenous people,
with nine ATSILS servicing 96 sites
nationally. Funding for these services should be sufficient to provide
assistance across all
legal arenas, from civil law matters, to advice for
victims of crime, to representation for those charged with criminal offences.
This paper examines the adequacy of funding available to ATSILS, and the
impact of funding constraints on ATSILS’ ability to
deliver effective,
quality legal services. In order to make this assessment, the authors first
examine some special issues in servicing
Indigenous clients.
Legal
Needs Specific to Indigenous Clients
Over-representation
Between 1996 and 2006, the potential client base of Indigenous
prisoners requiring legal assistance rose from 3275 to over
6000.[1] Given the over-representation
of Indigenous people in the criminal justice system, one might expect a level of
funding to ATSILS
to reflect a serious commitment to remedying this problem.
These figures reflect an acute need for proficient, accessible,
Indigenous-specific
legal representation for all prison-related issues, from the
time of arrest and bail, through to preparation for parole hearings.
Language
In some Indigenous communities, English is a second,
third or fourth language and is not spoken at
home.[2] In metropolitan communities,
Aboriginal English may be spoken; a lack of training in the nuances of this
language may impair effective
communication between client and
lawyer.[3] The failure to understand
language and cultural differences can lead directly to miscarriages of
justice.[4]
A 2002 survey
conducted by the Office of Evaluation and Audit reported that 13% of ATSILS
practitioners experience difficulty in understanding
what their clients are
saying ‘very often/often’; a further 50% ‘sometimes’
experience such difficulties.
Practitioners also reported that their clients
often struggle to understand what they are trying to
convey,[5] either because of the
client’s shyness or discomfort (65%), a disability that hinders
communication (51%), an inability to
communicate adequately in English (40%), or
because clients do not understand the legal process
(77%).[6] Legal Aid Commission
(‘LAC’) practitioners, on the other hand, report lower levels of
communication difficulty, highlighting
that:
ATSILS clients are
likely to be socially and economically more disadvantaged, and more alienated
from mainstream Australia than their
LAC counterparts. In many ways therefore,
ATSILS practitioners are dealing with more ‘difficult’ clients than
LAC practitioners.[7]
Cross-Cultural Issues
Cultural awareness is crucial to the
provision of effective legal representation to any Indigenous client.
Cross-cultural issues cover
a broad range of matters, many of which are taken
for granted in the ordinary course of providing legal services. This includes
confusion
about who has the right to speak; Indigenous kinship relations;
gratuitous concurrence (where clients indicate agreement in situations
where
they feel uncomfortable, or because of the perceived authority of the
solicitor); what is appropriate eye contact, and temporal
and spatial
definitions. As magistrates servicing remote communities in Queensland have
noted,
The complexities of cross-cultural communication impact not
just upon exchanges between a non-Indigenous bench and Indigenous people,
but
permeate throughout the whole criminal justice process; from the first
questioning by police, to the ability to properly instruct
lawyers, to well
known difficulties of the lack of understanding of the court process and the
subtle nuances of giving
evidence.[8]
The legal
needs of Indigenous clients are complex: not only do they often involve a number
of discrete areas of law; they also require
lawyers with cross-cultural
sensitivity. The ability to attract, train and retain high quality legal
advocates with these particular
skills is essential if requirements of fairness
and equality before the law are to be met.
Issues of
Disadvantage
Indigenous people in Australia face well documented
disadvantage in education, housing, employment, income and health. These
difficulties
can give rise to specialised needs and place more onerous
requirements on legal practitioners in the exercise of their duties. For
example:
• Indigenous people are less likely to share the literacy
and numeracy skills of the non-Indigenous population;
• Loss of hearing
due to ear disease is much higher for Indigenous people of all ages up to 55
years;
• Indigenous people have disability rates 1.4 times greater than
non-Indigenous people;
• Indigenous people are twice as likely to
experience high levels of psychological distress than non-Indigenous
people.[9]
These factors
– combined with higher rates of self harm, childhood removal and drug and
alcohol dependencies – mean that
Indigenous clients are a particularly
disadvantaged group with specific needs. For example, poor literacy hampers
communication by
mail; hearing impairment requires legal practitioners to adapt
particular skills in interviewing. These issues pose extra challenges
for
lawyers in delivering effective legal representation.
Field Officers
As noted above, the particular needs and circumstances of ATSILS clients
can create a range of cultural, communication and other difficulties
in the
lawyer-client relationship. For this reason, field officers are intrinsic to the
efficacy of ATSILS service. These officers,
who have a particular understanding
of community, culture and politics, act as a bridge between legal practitioners
and clients.
The importance of this role cannot be overstated; as the Victorian
Aboriginal Legal Service reported to a Federal Parliamentary Joint
Committee,
Solicitors would be lost without Field Officers. Field Officers are
the most important link in the chain for legal service
delivery.[10]
Indeed,
client satisfaction with field officers is consistently higher than that
reported for ATSILS lawyers.[11]
Where these officers are not present, there is a marked difference in the client
experience of the legal system. For instance, the
Office of Evaluation and Audit
reports that 88% of ATSILS practitioners rely on ‘ATSILS staff’ when
cultural or communication
issues arise. Yet 65% of ATSILS clients surveyed
reported that they had not had any contact at all with a field officer during
their
case.[12] Despite a
demonstrated need, the majority of Indigenous clients are unable to access the
services provided by ATSILS field staff.
Interestingly, 46% of LAC
lawyers also nominated ‘ATSILS staff’ as an important resource in
addressing communication
difficulties.[13] This represents a
significant drain on essential ATSILS capacities; the consequence of this
additional burden is all the greater
in conditions where the majority of ATSILS
clients are, in a practical sense, already denied access to important services.
This highlights
not only the importance of field officers, but also that this
role is currently inadequately resourced to cater to existing
needs.
Challenges to Effective Service Delivery
There are a
number of further restraints preventing ATSILS from providing a full range of
effective legal services, namely client
remoteness, difficulties in recruiting
and retaining staff, and funding constraints.
Remoteness
Geographical isolation is a major obstacle in
Indigenous access to justice; the Women’s Legal Service in the Top End
argues
that, in remote communities, access is ‘so inadequate that remote
Indigenous people cannot be said to have full civil
rights’.[14] This is a
pressing concern given that 27% of Indigenous people in Australia live in remote
or very remote communities, compared to
just 2% of the non-Indigenous
population.[15]
The average
costs of servicing a case in some parts of the Northern Territory and Western
Australia can be double that in other
states.[16] ATSILS managers report
that contacting clients and obtaining adequate instructions can be very
difficult where those clients are
members of highly mobile and
traditionally-oriented communities. Managers describe this as one of the
greatest difficulties in servicing
their client
base.[17] The cost of travel to
these communities is prohibitive, and face-to-face meetings are often
impossible. [18] Where practitioners
can attend such meetings, there is often little or no time to obtain a brief, or
to advise clients of their legal
options. This lack of contact time can cause
some practitioners to advise clients to plead guilty to criminal charges,
irrespective
of the merits of the
case.[19] Indeed, ATSILS clients, on
the whole, are more likely to enter guilty pleas than their mainstream
counterparts.[20]
Recruitment
and Retention of Staff
In addition to Indigenous disadvantage, and the
systemic failure of ATSILS to deliver effective legal services to remote
communities,
managers report a ‘chronic and increasingly acute inability
to maintain expert legal
staff’.[21] Between 2000 and
2005, solicitors at the Western Australian Aboriginal Legal Service reported the
average period of employment to
be 17 months. This is largely attributable to
heavy workloads, difficulties in retaining staff in regional and remote areas,
and
uncompetitive salaries compared to those paid by LACs.
These
difficulties further compromise the quality of service that ATSILS are able to
offer Indigenous clients; clients report frustration
that their matters are not
managed continuously by one legal practitioner, and that time is inefficiently
used due to duplication
and
re-briefing.[22] High workloads mean
that practitioners often have insufficient time to prepare cases
adequately.[23] Further, low
salaries mean that ATSILS practitioners are likely to be nearer the beginning of
their careers; practitioner inexperience
is a key concern for clients and
magistrates alike.[24] Taken
together, these factors lead to a situation where ATSILS have effectively become
‘a training ground for either the Legal
Aid Commission or private
firms’.[25]
Paucity
of Resources
Given the extent of Indigenous overrepresentation in
prison, the primary focus of ATSILS is to represent those clients facing
potential
incarceration. The number of criminal cases dealt with by ATSILS
increased by 67% between 1998 and 2003; yet despite this massive
increase,
funding for these services did not substantially increase during that
period.[26] The Office of Evaluation
and Audit reports that some 97% of ATSILS lawyers consider ‘lack of
funding, lack of resources, staff
shortages, and work overload’ as the
main impediments to providing quality legal service in criminal
matters.[27] In contrast, only 5% of
LAC practitioners nominated funding as a difficulty; no LAC practitioners
regarded staff shortage or work
overload as an issue hampering effective legal
representation.[28]
Further,
there is evidence of growing demand for practitioners to provide legal advice in
respect of child protection, civil matters
and family law. Yet ATSILS report
being unable to service these clients due to insufficient funding for
significant extension of
services beyond criminal
matters.[29] Inaccessibility to
family and civil law services compromises the ability of Indigenous people to
realise their full legal entitlements.
It also increases the risk that civil or
family law issues will escalate to criminal acts, resulting in charges and a
perpetuation
of the cycle of Indigenous
overrepresentation.[30]
Funding Comparison with Legal Aid Commissions
A comparison
with the resources allocated to LACs provides the most striking evidence of
under-funding for ATSILS. ATSILS provide
legal services at a significantly lower
cost than LACs[31] while maintaining
comparable levels of client satisfaction. Yet the workload of ATSILS lawyers is
significantly higher at 52 hours
per week, compared with 42 hours per week for
LAC practitioners. In 2003, ATSIC reported low staff morale as well as high
staff turnovers.[32]
Current
funding levels mean that ATSILS provide a cheap form of legal representation for
Indigenous people. An ATSIC 2001 review reported
annual ATSILS funding at $12
million less than LAC benchmarks. In 2003, ATSIC estimated the shortfall to have
increased to $25.6
million.[33]
There are very important questions about equity arising from the apparent
‘cost effectiveness’ of ATSILS. It is unsurprising
that the 2003
Evaluation of the Legal and Preventative Services Program found that
‘ATSILS practitioners work in a more stress filled, demanding environment
than their LAC counterparts, and are very
dissatisfied with their comparatively
lower remuneration’.[34]
Indeed, given the
myriad studies and research that undeniably
demonstrate the abysmal levels of disadvantage suffered by Indigenous people in
Australia,
it is incredible that Indigenous organisations continue to be funded
well below the levels of mainstream
services.[35]
Potential Benefits to be Achieved through Additional
Funding
ATSILS funding does generally increase from year to year, however
in real terms – taking into account inflation, rising Indigenous
population and increasing Indigenous criminalisation – they function in an
environment where funding is effectively static,
but demand is on the rise. This
compromises their ability to provide adequate legal services, both in quality
and quantity. The Legal Aid and Access to Justice Report recommended that
funding to ATSILS be increased as a matter of urgency; the Report stressed that
issues of language, culture, literacy,
remoteness and incarceration rates
– and the impact of these on the costs of service delivery – should
be factored into
the degree of
increase.[36]
Increased
funding to ATSILS would enable individual offices to employ more legal
practitioners, which would help to reduce the extremely
heavy ATSILS lawyer
workloads. Further, it could be used to increase salaries paid to ATSILS
solicitors, so that remuneration would
be at least commensurate with that paid
to LAC solicitors. This would help to reduce staff turnover and to make possible
the employment
of experienced practitioners. Moreover, extra funding would
enable ATSILS to increase services in civil and family law cases, to
provide
opportunities for professional development for Field Officers, and to run more
community awareness programs to promote available
legal
services.[37] More generally,
increased funding to ATSILS, and improved legal representation, would assist in
the reduction of Indigenous people
in the criminal justice system. It would
allow for better services for Indigenous people under arrest, in custody, or
being sentenced.
ATSILS would have greater capacity to work with other
Indigenous justice initiatives including Murri, Koori and Nunga courts, with
circle sentencing courts and with community justice groups in general.
An
increase in legal services, particularly for non-criminal matters, has the
potential to assist with economic development in remote
Indigenous communities.
At present, Indigenous people in remote communities do not have access to
adequate information about the
criminal justice system; they have even less
access to legal advice or representation about a range of civil law matters,
such as
housing, consumer rights, credit and debt, employment law, negligence
and corporations law. With more funding, ATSILS would be able
to do more than
simply try to keep up with their overwhelming workload; they would be better
able to ‘empower Aboriginal and
Torres Strait Islander peoples and advance
their interests and
aspirations.’[38] Moreover,
they would be able to pursue ‘change where needed, to improve social
justice and further the fight for equal
rights’.[39]
Melanie
Schwartz is a Lecturer in the Faculty of Law at the University of New South
Wales.
Professor Chris Cunneen is NewSouth Global Chair in
Criminology.
[1] See Australian Bureau of
Statistics (‘ABS’), Prisoners in Australia (2006),
38-53.
[2] Submission of Top End
Women’s Legal Service to Senate Legal and Constitutional References
Committee, Legal Aid and Access to Justice (2004), 5.101; Submission of
Yilli Reung Regional Council,
5.103.
[3] Submission of Wirringa
Baiya Aboriginal Women’s Legal Service, ibid,
5.102.
[4] See for example, the
Criminal Justice Commission, Aboriginal Witnesses in Queensland Criminal
Courts (1996).
[5] Office of
Evaluation and Audit, Evaluation of the Legal and Preventative Services
Program, (2003), 3.6.4.1.
[6]
Ibid.
[7]
Ibid.
[8] Tina Previtera and John
Lock, ‘Fly in/Fly out Justice – An Imperfect Journey” (2007) 1
The Verdict (Queensland Law Society) 28,
34.
[9] See ABS, National
Aboriginal and Torres Strait Islander Social Survey (2002), 28; Steering
Committee for the Review of Government Service Provision, Overcoming
Indigenous Disadvantage: Key Indicators (2007),5.25, 8,
9.41.
[10] Joint Committee of
Public Accounts and Audit, Access of Indigenous Australians to Law and
Justice Services (Report 403) (2005),
4.41.
[11] Office of Evaluation
and Audit, above n 5,
3.5.11.
[12]
Ibid,3.5.10.
[13] Ibid,
3.6.4.2.
[14] Top End
Women’s Legal Service, above n 2,
5.120.
[15] Steering Committee
for the Review of Government Service Provision, above n 9,
2.
[16] Office of Evaluation and
Audit, above n 5, 3.3.
[17] Ibid,
3.7.4.
[18] Senate Legal and
Constitutional References Committee, above n 3, 5.115.
[19] National Network of
Indigenous Women’s Legal Services, submission to Senate Legal and
Constitutional References Committee,
above n 2,
5.116.
[20] Office of Evaluation
and Audit, above n 5, 3.
[21]
Joint Committee of Public Accounts and Audit, above n 10,
4.2.
[22] Ibid,
4.2-4.8.
[23] Office of
Evaluation and Audit, above n 6,
3.6.2.
[24] Previtera and Lock,
above n 8, 31.
[25] Quoted in
Joint Committee of Public Accounts and Audit, above n 10,
4.27.
[26] Australian National
Audit Office Report no 13, ibid, 2.2.
[27] Office of Evaluation and
Audit, above n 5, 3.6.6.1.
[28]
Ibid.
[29] Senate Legal and
Constitutional References Committee, above n 3, 5.6, 5.7,
5.14.
[30] Joint Committee of
Public Accounts and Audit, n above 10,2.41,
2.23.
[31] Office of Evaluation
and Audit, above n 5, 3.3.
[32]
Senate Legal and Constitutional References Committee, above n 2, 5.13.
[33] Office of Evaluation and
Audit, above n 5, 1-2. For a comparison of the budget of the North Australian
Aboriginal Justice Agency
in 2006-7 and that of the Northern Territory Legal Aid
Commission in 2005-6 see Chris Cunneen and Melanie Schwartz ‘Funding
Aboriginal and Torres Strait Islander Legal Services: Issues of Equity and
Access’ (2008) 32(5) Criminal Law Journal,
51.
[34] Ibid,
4.6.3.
[35] Submission of the
Victorian Aboriginal Legal Service to Senate Legal and Constitutional References
Committee, above n 3, 5.17.
[36]
Ibid, Recommendation 27.
[37] See
Office of Evaluation and Audit, above n 5,
3.7.3-4.
[38] Aboriginal Legal
Service of Western Australia Inc, Goals and Philosophy, available at
<http://www.als.org.au/Philosophy.html>
viewed at 16 February 2009.
[39] Aboriginal Legal Rights
Movement Inc (South Australia), The Role of the Aboriginal Legal Rights
Movement, available at
<http://www.geocities.com/Athens/Acropolis/7001/alrm.htm>
, viewed at 16
February 2009.
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